In announcing the federal government’s approval of Indiana’s Medicaid expansion, Governor Mike Pence invoked common sense in defending his insistence that beneficiaries shoulder a share of their health care premiums. According to Pence, “It’s just common sense that when people take greater ownership of their health care, they make better choices.”

But relying on common sense is not a good way to make health policy. Common sense leads people to incorrectly believe that they are more likely to catch a cold by going out in cold weather or to take megadoses of vitamins that provide no additional health benefit and can be toxic. Common sense also leads physicians down the wrong path. Because lowering blood sugar has been good for the health of diabetics, medical experts recommended tight control of blood sugar levels. But that resulted in an increased risk of death for many patients.

It turns out that our intuitions often lead us astray, making it important that we rely on data from scientific studies to distinguish between good and bad policies. And we know from the data to date that when the poor are required to pay for their health care, they may choose to forgo it, not only when care is not needed but also when it is needed.

Kudos to Governor Pence for bringing the Medicaid expansion to Indiana and for worrying about health care costs. It may turn out that Indiana's cost-sharing is low enough to avoid problems, but rather than trying to contain costs by discouraging patients from seeking too much care, we should try to discourage physicians from providing too much care. Physicians are better able than patients to distinguish between necessary care and unnecessary care.

In 2012, the Supreme Court heard two important Medicaid cases, one in January of 2012 pertaining to payment rates (Douglas v. ILC), and the other in March 2012 pertaining to the ACA's Medicaid expansion (NFIB v. Sebelius). In Douglas, the Court's majority deferred to HHS, allowing the agency to exercise primary jurisdiction over California's Medicaid payment rates and punting the question regarding Supremacy Clause actions by Medicaid providers against noncompliant states. And, in NFIB, the Court decided that Medicaid's modification under the ACA was not Medicaid enough for purposes of Spending Clause doctrine but was Medicaid enough for purposes of the remedy, which was to limit HHS's authority to terminate Medicaid funding for states that refused to expand Medicaid eligibility under the terms of the ACA. Confused yet? So is the Court, and that's a potential problem.

Fast forward to 2014, and the Court is once again hearing a Medicaid reimbursement rate case and an ACA case, in the same time frame as 2012, both of which could be very disruptive. The Medicaid rate case is Armstrong v. Exceptional Child Center, and the weirdly confused oral arguments occurred today. The question the Court granted from the petition for certiorari was whether private parties can enforce the Medicaid Act's equal access provision ("30(a)") against a noncompliant state when HHS has not demanded compliance from the state through payment of adequate reimbursement rates. Armstrong may have far-reaching implications for the Medicaid program, for implied rights of action, and for federal courts' jurisdiction over Supremacy Clause actions, to name a few possible dimensions. Steve Vladeck, author of a very important amicus brief on behalf of former HHS officials, has posted about some of these issues. Rather than re-hash his fine commentary, or Will Baude's pithy overview for SCOTUSblog this morning, I will quickly share some impressions of today's oral arguments.

First, the justices had no idea how Medicaid works, which matters quite a lot when it may be the vehicle for constitutional change. Justice Breyer, for example, did not appear to understand the difference between the state describing how it would set payment rates and the state actually setting the amount of money it would pay to reimburse health care providers for their services. Here, Idaho created a methodology for rate setting that was approved by HHS, but then its legislature decided to use a different rate setting methodology tied to the state's budget. Breyer kept using the example of a doctor submitting a bill for $80 when all he could receive was $60, but the example was inapposite. Another minor example is that the prohibition against balance billing was news to the justices. Another example is Justice Alito's hypothetical about states that allow for medical marijuana being sued because feeral law does not permit possession of marijuana, which had no apparent relevance for the Medicaid preemption questions at hand.

James Piotrowski, on behalf of Exceptional Child Center tried to limit the conversation to whether the state actually followed the plan that CMS approved (which it appears Idaho did not). He also tried to explain why a broad-based Supremacy Clause/Spending Clause decision would be both unnecessary and dangerous, and he advocated for a limited ruling that would allow this set of plaintiffs to seek an injunction to force the state to abide by the reimbursement plan that HHS approved.

The trouble is that the Solicitor General, as he did in 2012, promoted the view that no private rights of action should be permitted. Justices Sotomayor and Kagan quickly called out Mr. Kneedler on HHS’ deep disagreement with this position. Kneedler asserted that HHS does not want these private actions, even though HHS pointedly did not sign the SG's brief, and even though the amicus brief here and in Douglas on behalf of former HHS officials (of all political stripes) clearly explained that HHS both expects and needs private actions to occur. In both cases, the former HHS officials explained that the agency is so woefully understaffed and underfunded that it could never police all of the states' reimbursement rates on a claim by claim basis.

The four dissenters from Douglas were relatively quiet during oral arguments today. In 2012, the Chief Justice authored a dissent that would have denied private rights of action under 30(a) to force states to pay adequate payment rates for equal access to health care providers. I suspect that Roberts, Scalia, Alito, and Thomas remain in the same positions, unless they were convinced that Idaho should have just stuck to the plan and their legislature drove off the rails after CMS approved their rate setting methodology. The real question will be if Kennedy sees this action as some kind of affront to state sovereignty given his affinity for federalism resolutions. If so, then Supremacy Clause actions will be lost for 30(a) litigants, and states will run over Medicaid providers who cannot enforce the adequate payment language in the Medicaid Act. In the very moment that more and more states are negotiating Medicaid expansion under the power given to them by the Court in NFIB, this would be a dangerous precedent both theoretically and on the ground. More to come.

With Harvard professors protesting their increased responsibility for health care costs, we are seeing just the most visible aspect of the recurring cycle described in “Tragic Choices.” As Guido Calabresi and Philip Bobbitt observed in that book, society tries to defuse societal conflict by hiding its rationing choices through implicit forms of rationing. Thus, for example, health care insurers relied on managed care organizations in the 1990’s to contain health care costs with the premise that managed care would preserve health care access and quality while squeezing the fat out of the health care system.

But after a time, the public realizes what’s going on and rebels against the implicit rationing policy. Hence, managed care’s effective cost containment strategies, such as limited networks of physicians or primary care gatekeeping, were dumped, and health care costs began to climb again.

What did health care insurers turn to after abandoning serious managed care? Shifting more of the costs of health care to patients through higher deductibles and higher copayments. Insurers didn’t need to identify limits on their coverage because individuals would respond to their higher out-of-pocket costs by hesitating to seek care. Costs would be contained by “market forces” rather than rationing. But the Harvard professors and other Americans are now rebelling against the shifting-of-costs policy, just as Calabresi and Bobbitt predicted in 1978. (Indeed, they even included the shifting of costs as an example of an implicit rationing strategy.)

Of course, cost shifting raises a number of concerns, including the fact that patients often do not distinguish well between necessary and unnecessary care when cutting back their doctor visits in response to cost shifting.

Where do we go from here? The Affordable Care Act includes many provisions designed to reward high quality care, and maybe we’ll see some meaningful cost containment out of them. But more likely, health care insurers will need to find another form of implicit rationing that will work for a while until the public rejects it.

For more discussion of the "Tragic Choices" cycle and the change from rationing through managed care to rationing through cost shifting, see here. For more discussion of the barriers to explicit rationing, see here.

In this article, published today at the Illinois Law Review online, Jessica Roberts and I argue why the Medicaid expansion is a matter of social justice that must be taken seriously in the upcoming gubernatorial elections. Here's the blurb from the journal:

On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon signing Medicare and Medicaid into law in 1965. Although the spotlight shone on Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest in its safety net—but only some of them. Medicaid’s exclusion of childless adults and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing to its stigma and seeming political fragility. Now, Medicaid touches every American life. One in five Americans benefits from Medicaid’s healthcare coverage, and that number soon will increase to one in four due to the Patient Protection and Affordable Care Act. Medicaid’s universalization reveals that the program can now be best understood as a vehicle for civil rights. ...

Like the recent Supreme Court decision in Hobby Lobby, the D.C. Circuit’s ruling earlier this week in Halbig v. Burwell is being hailed by conservatives and bemoaned by liberals as a death knell for Obamacare. Unlike the decision in Hobby Lobby, however the D.C. Circuit’s ruling is not the end of the matter, and many liberals are finding hope in the ruling of the 4th Circuit the same day, the probability of an en banc hearing in the D.C. Circuit, and the ultimate possibility of a favorable Supreme Court decision. In an earlier post in HealthLawProf, I decided to take seriously the possibility of damage control from a limited reading of Hobby Lobby. It is pretty much universally agreed—and I believe correctly—that it is not possible to do similar damage control by giving a limited reading to Halbig v. Burwell. If the ruling stands, that tax subsidies are not available to people purchasing coverage through the exchanges in the states that are letting the federal government do the work, many important other provisions of the ACA will be untenable, including the penalties for large employers not offering insurance whose employees receive subsidies and likely the individual mandate itself. But I think it is possible to undermine Halbig in a way not generally recognized by the liberal critics who argue (correctly) that the statutory provision at issue is ambiguous: argue that the jurisprudence of the majority opinion in Halbig is internally inconsistent. Here’s how.

Under D.C. Circuit precedent, the court must “uphold an agency action unless we find it to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” So, the question for the court was whether the IRS rule permitting individuals purchasing insurance through federally-run exchanges was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In concluding that it was, Judge Griffith’s opinion for the court reasoned that it was not in accordance with law. That is, Judge Griffith found that there was no ambiguity in the relevant provision of ACA that permitted the IRS to interpret the statute as it did. Here's where much of the criticism takes him on. But there’s more to say.

In reaching the conclusion that the statutory language is not ambiguous, Judge Griffith purported to rely on a literalist approach to statutory interpretation. But he did not in fact rely consistently on such an approach—nor could he have done so. The problem is that in order to formulate the literalist question to answer, Judge Griffith had to resolve several issues in a manner that was not literalist at all.

Over at Balkinization, Abbe Gluck, Neil Siegel, and Joey Fishkin have excellent posts on what's wrong with the Halbig majority. Abbe's is especially important given that the majority wrongly agreed with the complainants that the exchange is some kind of cooperative federlism program. It's not.

This has been cross-posted for a more general audience at ACSblog. Though it contains more background than most healthlawprof readers will need, analysis comes after the jump.

The D.C. Circuit held in Halbig v. Burwell that the IRS cannot provide tax credits to individuals who purchase private health insurance in states with federally-run insurance exchanges, potentially depriving millions of middle and low income Americans access to affordable health insurance. Improbably, while the blogosphere lit up, the Fourth Circuit held in King v. Burwell that the IRS properly interpreted the Affordable Care Act (ACA) to provide tax credits in all exchanges whether run by a state or the federal government. Members of the Obama Administration immediately declared they will seek rehearing by the D.C. Circuit en banc. The standard of review for petitions for rehearing is rigorous, but given the importance of the case, and the new circuit split, rehearing is conceivable. Further, it is not unreasonable to anticipate that the Supreme Court ultimately will grant a petition for certiorari in either or both of these cases. If it is upheld, Halbig could be the most damaging decision in the ACA litigation wars yet. For those not mired in the details of the ACA and its ongoing legal challenges, here’s why.

The ACA attempts to create near-universal insurance coverage by making Americans insurable and by commanding insurers to play by uniform rules. The ACA was created because, in 2008, one in five Americans did not have health insurance coverage. To make this number tangible, imagine everyone you know with blue eyes… and now imagine they do not have health insurance. That’s how many were uncovered, and the lack of coverage was just about that random too. In the United States, if you don’t have health insurance, you don’t have access to consistent healthcare. The ACA has clear goals, but it is a muddy scrum of legislative drafting that never underwent a conference committee process, and that imprecision has facilitated the litigation in these cases.

To avoid adverse selection (the problem of free riding), the ACA requires Americans to carry minimum essential coverage or face a tax penalty (upheld in NFIB v. Sebelius); however, if insurance premiums would cost more than 8% of an individual’s income, then no tax penalty will be assessed. To facilitate health insurance coverage, the ACA created health insurance exchanges, also called marketplaces, where individuals and small groups can purchase health insurance that provides standardized benefits without exclusions for preexisting conditions and other disequalizing prohibitions. People who earn 100-400% of the federal poverty level are eligible for federal tax credits that assist in paying premiums for private insurance on the exchanges (“premium assistance tax credits,” codified at 26 U.S.C. 36B), increasing substantially the number of people who can afford to purchase private health insurance.

States were given a choice to create exchanges with federal funding under ACA section 1311, and if they opted not to, then the federal government would create “such” exchange in the state under ACA section 1321. Sixteen states and D.C. created their own exchanges before January 1, 2014, so currently two-thirds of states have federally-run exchanges. This landscape is shifting slightly as some states’ exchanges fail and they move to federal mechanisms, while other states are still eyeballing the federal money available until 2015. What matters here is that the majority of exchanges were federally-run on the day that Halbig was decided.

With two federal courts of appeals coming to different conclusions on the most recent challenge to the Affordable Care Act, we should not be surprised that the judges have split along partisan lines.

By a 2-1 vote, the U.S. Court of Appeals for the D.C. Circuit held that subsidies for the purchase of health care insurance are available only on state-run exchanges, while the U.S. Court of Appeals for the Fourth Circuit held 3-0 that subsidies for the purchase of health care insurance are available on both state-run and federally-operated exchanges.

The two judges ruling against the Obama administration were appointed by Republican presidents while the four judges ruling in favor of the Obama administration were appointed by Democratic presidents.

Abbe Gluck and Tim Jost have explained why the subsidies should be available on federal exchanges; Michael Cannon and Jonathan Adler take the opposite view.

TheNew York Times reports on complaints by consumers about limitations on their access to physicians and hospitals. According to the story, insurers have restricted their provider networks to contain costs, while misleading their customers about the extent of the restrictions.

Without more information, one cannot draw firm conclusions about the problems. We cannot tell the extent to which insurers are acting badly, nor can we tell how much we are seeing the same backlash as in the 1990's when managed care organizations tried to contain costs by limiting their provider networks.

But the reports are not surprising. Limiting patient choice can be an important way to reduce costs. However, it is a politically unpopular way to do so. Hence, we often are told by candidates and elected officials that their health care reform will promote the three C's--greater coverage, lower costs, and broad choice.

It will be important to see how much the public tolerates restrictions on choice. It may make a big difference on whether the health insurance exchange premiums remain favorable.

I write this post with more than a little trepidation; I’m as unhappy as anyone about what the Court made of the Religious Freedom Restoration Act last week. Nonetheless, given the current state of play, I’ve tried to see whether there are any ways to try to limit the damage.

This Supreme Court term has featured a striking number of unanimous decisions. What has drawn unanimity in these cases has been the narrow basis on which they were decided. Commentators have praised Justice Roberts for his political skills in bringing the Court together—demonstrating that at least one branch of government remains functional and shoring up claims to judicial legitimacy. Other observers note, however, that the unanimity is only skin deep—and point to the cases in which the Court divided 5-4 as symptomatic. So suppose we perform a thought experiment on one of the most divisive decisions of this term, Hobby Lobby. How could the decision have been narrowed? How should it have been narrowed? Such an examination is invited by Justice Alito’s statement that the Court’s holding is “very specific.” It is also invited by Justice Kennedy’s concurrence, which opens with the assertion that the Court’s opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. Finally and disturbingly, it is also invited by the observation that the Court has quite quickly, in the case involving Wheaton College, opened wide one of the apparently narrow doors.

Undoubtedly, the Supreme Court has been too solicitous of corporate rights in recent years. And without doubt, reproductive rights are under siege from many state legislatures and federal judges. But these concerns do not justify the dramatic characterizations of yesterday’s Hobby Lobbydecision.

According to Emily’s List, the Court’s decision to “restrict women’s health care” is a “devastating setback.” According to the Democratic Legislative Campaign Committee, “millions of women must have their bosses’ permission to access birth control.” And according to Planned Parenthood of Indiana and Kentucky, “countless women, already struggling to make ends meet, will not have the benefit of the family planning coverage provided to all others under the Affordable Care Act.”

In fact, the Court's decision need not result in limits on women’s access to contraception. To be sure, the Court agreed with Hobby Lobby (and Conestoga Wood) that they should not have to pay for methods of birth control that violate their religious beliefs (morning after pills and IUDs in this case). But the Court also observed that the federal government could use other approaches to guarantee access for women to contraception.

Indeed, wrote the Court, the government can employ the same accommodation for companies such as Hobby Lobby that it employs for religiously-affiliated, non-profit institutions such as universities. Under that accommodation, the organization’s insurer provides a separate plan for contraceptive coverage and does not bill the organization or the employee. In other words, the female employees receive full coverage without imposing a burden on the employer’s religious practice.

There are plenty of reasons to criticize the erosion of reproductive rights in the United States. And it is possible that the narrow holding of Hobby Lobby will be expanded in the future. But the decision itself does not entail a compromise of reproductive health.

Since the likelihood is that many readers of this blog will be asked to comment about whatever opinion the Supreme Court issues this week, here’s a quick refresher. The Hobby Lobby and Conestoga Wood Specialty cases are challenges to the Affordable Care Act's requirement that employers who choose to offer health insurance to their employees must provide policies that include ten essential benefits-including contraception. The U.S. Supreme Court has heard oral arguments and read the briefs—it’s likely that whatever opinion is issued will reflect at least some of the arguments presented to the Court.

This case is about the Affordable Care Act’s requirement that employers who offer their employees health insurance must offer policies that provide ten essential benefits, including contraception. Hobby Lobby and Conestoga Wood are privately held, for-profit companies whose owners have sincerely held religious objections to providing four specific kinds of contraception. They believe these contraceptives terminate rather than prevent pregnancy. Many religious organizations and companies have gotten exemptions to these requirements, but this case considers whether private, for-profit companies should qualify as well.

The cases raise (at least) three major issues:

1.Does the Religious Freedom Restoration Act apply to corporations even though it uses the word “person?” (Can companies have religious beliefs?)

2. Is providing insurance that covers birth control a “substantial burden?” on these two company’s' religious beliefs?

3. Does the government have a compelling reason for requiring companies that provide insurance to offer policies that cover all the forms of contraception specified in the ACA?

It is likely that this decision will address (I almost said clarify, but who knows?) the limits of a law passed by Congress in 1993 to over-rule an earlier Supreme Court Decision, Employment Division v. Smith, holding that so long as a law passed by the federal government “applied to everyone” everyone was required to follow it even if it interfered with their sincerely held religious beliefs. In that case, Native American employees of a drug rehabilitation clinic challenged their firing for the use of Peyote as unconstitutional since using the drug was part of their sincerely held religious belief. At that time the Supreme Court held that so long as a law applied to everyone, everyone had to follow it even if it infringed on some people’s beliefs.

Until now, there has never been a case where a “company” had religious beliefs. There are legal advantages to doing business as a company rather than as an individual or a partnership. The main one is that the owners aren’t personally responsible for the company’s debts or actions. If the company goes bankrupt, the owner’s personal assets aren’t at stake. If the company gets sued, the owner won’t have to pay the judgment.

A few reminders about how ACA works—no company in the United States has to provide health insurance to its employees. If it chooses not to, the employees would be eligible to buy subsidized health insurance through the exchanges. Because it employees more than 50 people, Hobby Lobby would have to pay the government $2000 per employee to cover the cost of the subsidized insurance-this called the Employer Shared Responsibility Provision. These payments are postponed until 2015, i.e. they haven’t happened yet, but this how the Kaiser Foundation says they will work.

Unlike the Affordable Care Act decision that once decided effectively resolved a dispute and faded away, it is likely that whatever the result the decision here will be the basis of considerable analysis and is likely to be an important addition to the body of precedent interpreting the First Amendment’s Free Exercise clause.

The new law, a short one and worth reading in full, the Religious Freedom Restoration Act, essentially reverses Employment Division v. Smith by stating that even if a law applies to everyone, if it substantially burdens anyone’s sincerely held religious beliefs the government has to show a compelling reason for the law and has to show that the law is the least restrictive way of achieving the law’s goals.

Until now, there has never been a case where a “company” had religious beliefs. There are legal advantages to doing business as a company rather than as an individual or a partnership. The main one is that the individual’s owners aren’t personally responsible for the company’s debts or actions. If the company goes bankrupt, the owner’s personal assets aren’t at stake. If the company gets sued, the owner won’t have to pay the judgment.

At this point, there isn't much more to do but wait. It's hard to break the speculating habit since many of have spent the past three years spinning scenarios.

For example, it’s unclear how far a decision that a private company could be exempt from federal laws that go against its religious beliefs would go. For example, a company with a religious belief that women shouldn’t work outside the home might claim that it would not have to follow laws prohibiting sex-discrimination.

Within the health insurance field it’s also unclear how far a company could pick and choose—for example, could a company decline to cover immunizations or blood transfusions.

It seems likely that a company could choose to cover contraception for married employees but not unmarried employees. Stay tuned, we will probably know more tomorrow—or at least by June 30th.

I'm a guest over at prawfsblog this month--come visit-and my posting today was about why law professors should be interested in Sen. Elizabeth Warren's new memoir. You can read the whole pitch below--it includes that it's a funny, warm, well-written and interesting account of a remarkably successful career. I also noted how important her efforts at fixing student loan debt are as a platform on which to build needed change in higher education. Finally, she has very interesting things to say about balancing work and family as well as going beyond the classroom to help the individuals affected by the law she studied. At a recent executive board meeting of the AALS Section on Law, Medicine and Health Care, current chair Dr. Ani Satz noted that there are not many mechanisms for recognizing that kind of service. (side note--consider yourself warmly invited to the terrific panels our chair elect, Dr. Thad Pope, has organized for us to present and co-sponsor, more information to come).

But for a health prof audience, I'd also point out that she discusses her empirical work (with a team of top social scientists--she didn't do the math herself) that finally demonstrated the major flaw in our employer based health insurance system. Medical bills turned out to be the leading cause of bankruptcy--and very often among families already insured. Either their insurance was inadequate (maybe we should get these folks together with the people who are upset they can't keep their "old" plans) or, worse, their illness meant they could no longer work. Whether the debt came directly from medical bills or from using credit cards and home equity loans to pay the bills--the results were equally catastrophic.

That this actually happens--that medical bills are a leading cause of bankruptcy--is as far as I know not currently disputed. But I'd be remiss in this context not to point out that as part of the opposition research arising from her running to Senate-the Breitbart blog has made available a series of angry accusations from the 1990's of misconduct about that study.

It will be a while before we see if the Affordble Care Act is going to do much to fix this problem--and predictions are mixed. See this as opposed to this. There's a federal study finding bankruptcies down in Massachusetts following Romneycare. Common sense suggests that changes like no exclusions for pre-existing conditions and the lift of lifetime caps will make things better (for people with plans bound by those provisions).

But although certainly not usually described as such, Sen. Warren is, if not a Health Law Prof, certainly one whose work is very important to us.

The Affordable Care Act might not bend the cost curve or improve the quality of health care, but it will save thousands of lives, as millions of uninsured persons receive the health care they need. At least that’s the conventional wisdom. But while observers assume that ACA will improve the health of the uninsured, the link between health insurance and health is not as clear as one may think. Partly because other factors have a bigger impact on health than does health care and partly because the uninsured can rely on the health care safety net, ACA’s impact on the health of the previously uninsured may be less than expected.

To be sure, the insured are healthier than the uninsured. According to one study, the uninsured have a mortality rate 40% higher than that of the insured. However, there are other differences between the insured and the uninsured besides their insurance status, including education, wealth, and other measures of socioeconomic status.

How much does health insurance improve the health of the uninsured? The empirical literature sends a mixed message. On one hand is an important Medicaid study. Researchers compared three states that had expanded their Medicaid programs to include childless adults with neighboring states that were similar demographically but had not undertaken similar expansions of their Medicaid programs. In the aggregate, the states with the expansions saw significant reductions in mortality rates compared to the neighboring states

On the other hand is another important Medicaid study. After Oregon added a limited number of slots to its Medicaid program and assigned the new slots by lottery, it effectively created a randomized controlled study of the benefits of Medicaid coverage. When researchers analyzed data from the first two years of the expansion, they found that the coverage resulted in greater utilization of the health care system. However, coverage did not lead to a reduction in levels of hypertension, high cholesterol or diabetes.

So back to Mumps. Few had heard of it, and no one knew what should really be the main attention grabber. It can impair fertility—even to the extent of causing sterility. There hasn't been a lot of research done recently and permanent sterility is rare- probably no more than 10%. But why chance it when it can be prevented?

The good news on the public health front is that it’s never too late to be vaccinated. And preventive vaccination (even for childhood diseases) is covered under the Affordable Act. Young adults would be wise to look into their own vaccination status. If pediatric records aren’t available, a blood test can measure antibodies that show the presence (or absence) of vaccination against many serious childhood diseases that are coming back to infect young adults. But if vaccination laws continue to be lax, long after the reason for so many people's misgivings has turned out to be a fraud, we will not be able to get ahead of what should to everyone be a very frightening trend

Do corporations have a right to religious expression? As the U.S. Supreme Court considers whether Hobby Lobby is exempted from the Affordable Care Act’s contraception mandate because of its religious beliefs, the Court first must decide whether for-profit corporations even have rights of religious freedom.

While the Supreme Court should impose appropriate limits on the First Amendment rights of corporations, there are important reasons to recognize corporate claims of religious freedom. We often call on corporations to act in ethically and socially responsible ways, and it is important that they do so. If we want corporations to inculcate an ethos of ethics, then we undercut that goal when we deny corporations their ability to act on the basis of conscience.

To be sure, there are nuances. It is much easier to speak of the religious freedom of a family-owned business such as Hobby Lobby than of a publicly-owned business such as General Electric. Moreover, we must draw a good balance between corporate rights and the public welfare (as I’ve argued about corporate speech and public health here).

Recognizing corporate rights of religious expression would not settle the Hobby Lobby case. We still would have to balance the public’s interest in access to contraception with the corporation’s interest in religious freedom. But that is where the debate should lie.

Tomorrow, the D.C. Circuit will hear oral arguments in Halbig v. Sebelius. This is the litigation in which parties hostile to the ACA are challenging the IRS rule that makes tax subsidies available in federally run health insurance exchanges. Abbe Gluck has posted a deconstruction of the challengers' legislative and historical arguments at Balkinization, including a new post this morning discussing factual and historical inaccuracies in the appellants brief. I want to address one of those arguments here: the analogy that the health insurance exchanges are somehow like the Medicaid expansion ruled unconstitutionally coercive in NFIB v. Sebelius. This comparison is so far off the mark, it reveals the underlying goal, which is to test the breadth of NFIB's coercion holding at every opportunity and to challenge federal power writ large.

The ACA expanded Medicaid eligibility to everyone up to 133% of the federal poverty level, and the states challenged that expansion in NFIB on the theory that they could lose all of their funding under the terms of the Medicaid Act if states refused to expand. The Court found that the expansion of Medicaid was a change in "kind" rather than "degree" and that the funding for the "old Medicaid" program could not be jeopardized for state refusal to comply with the "new Medicaid" program as envisioned in the ACA. As I have written elsewhere, the Court's unconstitutional coercion analysis was full of holes. One of those holes was nonsensical statutory interpretation, namely that the Medicaid expansion was too different from the Medicaid Act for coercion analysis purposes, but that it was similar enough for purposes of limiting the Secretary's authority to withhold or withdraw state Medicaid funding. But, that authority was not in the ACA (contrary to popular perception), it was in the language of the original Medicaid Act. The new/old Medicaid distinction was statutorily nonsensical, and yet it led to a newly recognized coercion doctrine that limits Congress's power to influence state policy through federal spending.

The Halbig appellants want federal courts to engage in this new coercion analysis by virtue of similarly absurd statutory interpretation. They ask the D.C. Circuit to deem the federal exchange funding offered to states to be struck down as coercive; but, they argue it is coercive not because of the money offered to states to create exchanges, but rather because of the tax credits that would not be available to individuals in exchanges established by the federal government. This causal chain is too attenuated; the claim is basically that the states were influenced not by the federal offer of funds but by the unavailability of tax credits for their citizens in federal exchanges. If this indirect coercion were possible, it is hard to imagine that two-thirds of states would have rejected the option to run state exchanges. It also breaks the link between the federal funding, the condition, and the supposed coercion (which is really a germaneness problem). States do not receive insurance premium tax credits, individuals do. States were offered moderate sums to establish their exchanges, and the loss of that moderate sum did not change the state's status at all. The appellants have mischaracterized the nature of the funding and the result of state rejection of that federal funding.

In addition, this argument can easily be turned on its head. Consider, for example, the Amicus Brief for the Commonwealth of Virginia in King v. Sebelius, recently filed in the Fourth Circuit's version of this tax credit litigation. Virginia argues that it was not aware that its citizens would lose access to tax credits if it rejected the funding to create its own exchange, thereby creating the polar opposite clear notice problem because Virginia believed its citizens would still have access to affordable health insurance if they invited the federally run exchange into the state. (See Kevin Outterson's post on Virginia's brief at The Incidental Economist.)

Clearly, exchange funding is different from Medicaid conditional spending. The ACA offered money to persuade states to participate in the establishment of exchanges, but the federal government will proceed without the states in the effort to establish near-universal insurance coverage. Congress would have dismantled its own goal of near-universal insurance coverage if it denied tax credits in federally run exchanges. This is the hope of the Halbig challengers, that the D.C. Circuit will dismantle the ACA's tax credit structure for federal exchanges and gut access to health insurance. Unfortunately, if they succeed, real people will be harmed.

I am pleased to share the Medicaid Matters symposium issue that has just been published in Volume 102, Book 2, of the Kentucky Law Journal. This special issue includes articles from Brietta Clark, Mary Crossley, John Jacobi, Elizabeth Weeks Leonard, Laura Hermer (with Merle Lenihan), Sallie Sanford, and Sidney Watson (and me). This is an excellent collection of thoughtful articles that resulted from a day-long workshop on Medicaid in the post-ACA world. Many thanks to the participants in the workshop, and I hope you will enjoy the fruits of their labors!

A big part of the job of being a Health Law Prof is to help students understand the intersection of the many legal specialties that comprise the big tent of "Health Law." Wellness Programs are a good way of doing that because one of the key features of the Affordable Care Act is the flexibility it provides employers to link the cost their employees pay for health insurance with the individual employee's participation in a company sponsored "welleness program." Here's an article I wrote explaining how PPACA went about doing that. Here's a link to the Department of Labor's summary of the current rules and a good overview by the law firm Nixon-Peabody. This report from Rand is an overview of what these programs are and how companies have increasingly fallen in love with them. At this point just about every insurance company is offering to create one--here's some information from Aetna.

The problem is, there's very little evidence that these programs do anything to demonstrably improve health (whatever that may mean). And quite a bit that they may promote many different kinds of social injustice.

This article in the Harvard Business Review does a great job describing the kinds of programs that are now descending on employees and how they are creating disatsifaction without any scientifically supportable improvement in "health."

Studying Wellness Programs--and the issues they raise--can be an accessible entry point for students who can easily be intimated by the regulatory complexity of health law and can also be a bridge to understanding how fundamentally the Affordable Care Act has affected the way health care will be paid for and delivered as our students begin their careers in advising those struggling to implement these new regulations.

Where does one start with AOL CEO Armstrong's ridiculous and unfeeling justifications for changes in his company’s 401(k) plan. Cable TV and Twitter came out of the blocks fast with the obvious critiques. And the outrage only increased after novelist Deanna Fei took to Slate to identify her daughter as one of the subjects of Armstrong’s implied criticism. Armstrong has now apologized and reversed his earlier decision.

As the corporate spin doctors contain the damage, Armstrong’s statements likely will recede from memory, although I am still hoping The Onion will memorialize Armstrong’s entry into the healthcare debate (suggested headline, "CEO Discovers Nation's Healthcare Crisis Caused by 25 Ounce Baby”). But supposing (just supposing) your health law students ask about the story in class this week. What sort of journey can you take them on?